The Presidential Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the Unites States” (WOTUS) Rule issued on February 28, 20171 articulated the Trump administration’s policy on navigable waters, and attempted to roll back the Clean Water Rule issued by the Obama administration to define the term “waters of the United States” for permitting purposes under Section 404 of the Clean Water Act The key elements of the Executive Order are as follows:

The Executive Order articulates the Trump administration’s policy to “ensure that the Nation’s navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution.”The Executive Order instructs the Environmental Protection Agency (”EPA”) and the Assistant Secretary of the Army for Civil Works (which oversees the Army Corps of Engineers (“Corps”), tasked with implementation of the Section 404 permitting program) to “review” the Rule for consistency with the new administration’s policy and to publish a proposed rule rescinding or revising the Rule consistent with the policy articulated in the Executive Order.The Executive Order directs the agencies to “consider” interpreting the term “navigable waters” consistent with the opinion of Justice Scalia rather than the broader interpretation applied by Justice Kennedy in Rapanos v. United States.2The Executive Order orders the Attorney General be informed of the pending review so that he may inform any court in litigation related to the Clean Water Rule and “take such measures as he deems appropriate” pending completion of the administrative proceedings related to the Rule.Each of these has implications for how the Section 404 permit program will be implemented by the EPA and Corps and interpreted by the federal courts.3

The Clean Water Rule: In the Federal Register preamble to the Obama administration’s Clean Water Rule, EPA and the Corps (“Agencies”) stated that the Rule was promulgated to define the scope of waters protected under the Clean Water Act in light of the Act, science, several United States Supreme Court decisions, including Rapanos v. United States,4 and the Agencies’ experience and technical expertise.5 The Agencies asserted the Rule would simplify and speed up the permit process through clearer definitions and increased use of bright-line boundaries to establish features that are “jurisdictional by rule” and therefore do not require case-specific analyses of a significant nexus to a downstream water of the United States to establish jurisdiction. The Rule was enjoined before it went into effect.

New Policy: The administration’s new policy emphasizes pollution control and economic growth, but is silent with respect to which of these considerations takes precedence or how they are to be balanced when they are in conflict, as is often the case in permitting situations. The policy is also silent with respect to the Clean Water Act’s often-quoted objective ‘‘to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,”6 which arguably encompasses not only direct pollution but also destruction and degradation as well as restoration of waters and the biological resources they support. It remains to be seen how the Corps and EPA will interpret the administration’s new policy and reconcile it with the statute and judicial precedent.

New Rulemaking: The Corps and EPA are ordered to issue a rulemaking that rescinds or revises the current Clean Water Rule consistent with the Trump administration’s policy. It is unclear when that may occur or what the rulemaking may propose in place of the Clean Water Rule. The EPA recently announced that it intends to use two separate rulemakings to formally repeal the Rule and then replace it, in a likely attempt to have the Rule repealed before a court is granted jurisdiction to hear the case.7 In the meantime, the Agencies are continuing to evaluate permit applications under the rules in effect prior to the Clean Water Rule since the Rule is currently stayed.

Scope of “Waters of the United States”: The Executive Order directs the permitting agencies to consider Justice Scalia’s more narrow interpretation of the scope of “Waters of the United States” in the fractured Rapanos decision. Scalia’s interpretation would essentially limit the extent of permitting jurisdiction to “relatively permanent, standing or continuously flowing bodies of water” connected to traditionally navigable waters, and to “wetlands with a continuous surface connection to” such waters. Justice Kennedy, in his concurring opinion, presented a broader interpretation of the term, identifying regulated waters to include those with a “significant nexus” to downstream traditional navigable waters. At this point, the Corps and the EPA apply either interpretation, but emphasize Kennedy’s “significant nexus” test, particularly for upstream tributaries. The Clean Water Rule relied heavily on Justice Kennedy’s significant nexus test to establish features that are “jurisdictional by rule” and therefore do not require case-specific analyses to demonstrate a significant nexus to a downstream water of the United States to establish jurisdiction.

The EPA recently met with state and local officials to review plans to roll back and revise the rule. Using a slide show, the EPA outlined alternative approaches to defining Justice Scalia’s “relatively permanent waters” and wetlands “with a continuous surface connection.”8

The three alternative approaches to “relatively permanent waters” are:

Perennial streams only (i.e., streams that carry flow throughout the year except in extreme drought).Perennial streams plus streams with “seasonal” flow (current practice is to define seasonal flow as about three months, but this can vary regionally).Perennial streams plus streams with another measure of flow, using metrics such as frequency of flow and intersecting water table.The three alternative approaches to “wetlands with a continuous surface connection” are:

Wetlands must directly touch jurisdictional waters.Wetlands with a surface connection to a jurisdictional water even if separated by a non-jurisdictional feature.Wetlands with some degree of connectivity to a jurisdictional water, using an appropriate metric such as distance.EPA is seeking comments and suggestions from state and local officials by June 19, 2017.

The Clean Water Rule is Currently Stayed: The Executive Order, and even the potential repeal of the Rule by the EPA, would have little practical effect on current regulatory decisions since the Rule was already enjoined by the Sixth Circuit and the Federal District Court for the District of North Dakota—although a repeal would cause the effects of this stay to be permanent. The stay is in effect because the courts were troubled by the broad “ripple effects” of the Rule’s bright-line approach to jurisdictional boundaries, particularly the inclusion of remote and intermittent waters as jurisdictional tributaries, and the use of geographic distance as a jurisdictional determinant without sufficient notice or scientific support. However, the Trump administration’s direction, diametrically opposed to the Obama administration’s approach in the Clean Water Rule, will likely eventually result in a new rulemaking that takes a far more limited view of the scope of the Clean Water Act’s jurisdiction.

Ongoing Litigation: The Executive Order directs the Attorney General to take whatever action he deems appropriate in the pending litigation on the Clean Water Rule. Cases are pending in federal district courts; and the Sixth Circuit found that it has jurisdiction to hear challenges.1 The U.S Supreme Court took up the matter in January, 2017. The Justice Department moved to halt the litigation in light of the Executive Order, but the U.S. Supreme Court rejected the motion. However, with EPA’s announcement of its plan to repeal the Rule, there may be a race to move forward with repeal before the Court determines which court has jurisdiction to hear the challenges. If the Rule is already repealed before the Supreme Court is set to hear the issue, the EPA may be able to have the case dismissed and establish a “clean slate” on which to issue a new rulemaking based on Justice Scalia’s more narrow interpretation.

What Now?: The Clean Water Rule remains stayed and may soon be repealed. The Corps’ and EPA’s evaluations of permit applications continues as it has for many years under their pre-existing rules which require case-specific determinations of whether a “significant nexus” exists for tributaries and upstream features. The U.S. Supreme Court may rule on which court has jurisdiction to hear legal challenges of the Rule, or the Rule may be repealed and the case may be dismissed.

Environmental groups will no doubt bring challenges to any new rulemaking that attempts to sideline Justice Kennedy’s significant nexus test and limit the scope of regulated waters to Justice Scalia’s “traditionally navigable waters” in light of the Clean Water Act’s language and objectives. The eventual outcome is not clear. What is clear for the regulated public is that, while the Agencies continue to regulate under the status quo for the time being, the scope of future regulation under the Clean Water Act remains entirely unclear.

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